1970 (8) TMI 73

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..... ther service by registered post under the endorsement 'refused' made by the postal department merely raised a rebuttable presumption or a conclusive one and whether in the circumstances of this case that presumption had been sufficiently rebutted." For the year 1962-63 an ex parte assessment order was passed against the assessee on 15th March, 1967. An appeal against the assessment order was fil .....

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..... r registered cover which was returned with the report "refused". The assessee filed an affidavit denying that he had refused to accept the service of the envelope containing the assessment order and the notice of demand, and also made an application under section 5 of the Limitation Act. The Assistant Commissioner (judicial) however did not accept the affidavit of the assessee and refused to condo .....

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..... t raises a conclusive presumption or the presumption is rebuttable? (ii) As to whether on the facts of this case the presumption can be said to have been rebutted by the assessee. From a perusal of the order of the Judge (Revisions) as also from the language in which the question is couched, it is apparent that the admitted case of the parties was that when a letter is returned undelivered to th .....

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..... or not a particular presumption has been rebutted in a case depends upon the findings recorded by the authority concerned on the material placed before it. Now, in the instant case the assessee had filed an affidavit saying that the envelope containing the assessment order and the notice of demand had never been tendered to him for delivery and he never refused to accept the same. The department h .....

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..... in that category. We accordingly answer the second part of the question by saying that in the first instance it is a question of fact and not a question of law and secondly even if we were to answer such a question, our answer would be that in the circumstances of the case, the presumption of service had been sufficiently rebutted. We answer the two questions accordingly in favour of the assess .....

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